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Section 1: Monitoring EXECUTIVE SUMMARY The Legal Systems Monitoring Section (LSMS) of UNMIK Pillar III (Organisation for Security and Co-operation in Europe - OSCE) has conducted a six month review of the justice system in Kosovo. The report covers the period from 1 February 2000 to 31 July 2000. LSMS has monitored seventy-seven of the one hundred and sixteen District Court trials completed within these dates (66%). Of the completed trials in this period, one hundred-forty defendants were convicted and twenty-nine were acquitted (83% conviction rate). This report also makes reference to a number of trials that were not completed by 31 July 2000. The United Nations Mission in Kosovo (UNMIK) is vested with all executive and legislative powers, which are exercised by the Special Representative of the Secretary- General of the United Nations (SRSG). UNMIK has the mandate to administer the justice system in Kosovo, and the Administrative Department of Justice is responsible for the overall management of the judicial system and correctional service. The OSCE, as a part of UNMIK, shares the responsibility given by the United Nations (UN) Security Council “to ensure that human rights protection and promotion concerns are addressed through the over-all activities of the mission.” This public report provides a comprehensive overview of the justice system from a human rights law perspective. The purpose of this report, in accordance with UN Security Council Resolution 1244 and outlined in the United Nations Secretary-General’s letter of 12 July 1999 to the UN Security Council, is to assist UNMIK to “develop mechanisms to ensure that the police, courts, administrative tribunals and other judicial structures [operate] in accordance with international standards of criminal justice and human rights.” Although international human rights standards form a part of the applicable law, there is still confusion as to its application by the Kosovo legal community. For example, there are widespread violations throughout the territory of Kosovo of the applicable law that relate to arrest and detention. Arrested individuals are held in detention by law enforcement authorities for extended periods of time before being brought before a judicial authority and are often not informed of their rights. In fact, some persons are held in continued detention despite the lawful order to release by a judicial authority. There are common patterns and practices of misapplication of the domestic law that often result in human rights violations. These patterns and practices have been identified throughout the legal system in Kosovo as a whole. For example, pre-trial detention orders rarely provide the specific facts regarding an individuals’ case that warrant the deprivation of liberty before the individual has been proven guilty of a crime. Defence counsel often fail to use the provisions of the domestic law that provide for an active defence, leaving many defendants without any effective representation. Moreover, there are provisions of the domestic law and UNMIK Regulations that, in themselves, may conflict with human rights standards. Under the domestic law, the courts 1 are not required to ensure that the court record accurately depicts the legal proceedings. UNMIK Regulation 1999/26, on the extension of pre-trial detention, as well as the domestic law, fail to provide for a review of the lawfulness of detention. A long and continuing climate of ethnic conflict has severely impacted upon the objective impartiality of the courts and raises concerns as to actual bias on the part of certain judging panels. One response has been to appoint international judges and prosecutors to deal particularly with those serious criminal trials involving defendants from minority groups. This initiative is to be supported and should be pursued, even though, in the light of the majority voting system in the panels, the influence of the international judges over deliberations is restricted. Another problem is the insufficient number of international judges and prosecutors, because these international personnel do not act in all cases of a similar nature, in particular those involving war and ethnically motivated crimes. This has resulted in the unequal treatment of certain defendants before the courts and the denial of basic facilities by which to adequately prepare and present the defence. The appointment of further international judges and prosecutors should therefore be treated as a short-term priority. In addition to concerns as to minorities, there are other vulnerable groups, including juveniles and victims of sexual violence, within the criminal justice system who require enhanced protection. Some juveniles have been subject to extended periods of pre-trial detention, as there are no viable alternatives for their placement. In cases of sexual violence, there is a failure of some courts to adequately pursue and prosecute these offences. In addition, in some cases, the treatment of the victim by the court raises concerns of discrimination. On 18 January 2000, in the Gnijlan/Gjilane District Court, 36 judges and 4 public prosecutors were sworn into office. Over the next six weeks, similar ceremonies were held in Kosovo’s four other regions and thus marked the beginning of a new criminal justice system for Kosovo. This was a criminal justice system that was starting from scratch, with not only a new legal framework, but also new participants. Much of the infrastructure of the courts was poor. Most courts were without heating, water, electricity, chairs, desks or even paper. But the problem is more than infrastructure. A significant number of those appointed judges and public prosecutors had not worked as lawyers since 1989 and in any event, had no working knowledge of basic human rights law. Concepts such as the principle of “equality of arms” had no place in the local justice system. Indeed, with regard to the defence, challenging the state had in any event been historically fraught with danger. Since November 1999, there have been a number of training sessions for judges and public prosecutors, but few, and only recent ones, specifically targeting defence counsel. In the seventy-seven cases monitored by LSMS, there has been only two occasions in which reference was made to international human rights standards. As of 31 July 2000, the courts are still applying those provisions of the domestic law that violate the 2 international standards. The legal profession has had insufficient training in international human rights law in order to be able to properly apply such law in practice. UNMIK has taken positive steps in order to address many of the issues identified. UNMIK succeeded in building a functioning judicial system from scratch in less than a year. The presence of international judges and prosecutors has assisted, in a number of cases, to obviate some of the concerns raised above. In addition, UNMIK has, on a number of occasions, provided guidance to the courts as to the applicable law, including international human rights standards, and its application. UNMIK is also developing translation and interpretation support services for the international judges and prosecutors as well as developing a database of legal terminology. Despite this, in terms of fairness and effectiveness, the present system has much room for further improvement. The statistics in this review have been obtained from court files. LSMS has, where possible, verified the information through other sources, including detention facility records, defendants and their counsel. This report would not have been possible without the assistance of judicial personnel and legal professionals. OSCE would like to express its gratitude to court staff who have, with patience and good grace, facilitated the LSMS monitors in performing their tasks. OSCE would also like to express its appreciation to detention centre commanders, UNMIK police and KFOR for providing, generally, unhindered access to detainees. 3 SECTION 1: MONITORING I. The Mandate of the Legal Systems Monitoring Section In UN Security Council Resolution 1244, the UN Security Council authorised the UN Secretary-General to establish an international civil presence in Kosovo that would provide an interim administration. One of the main responsibilities of the international presence was “protecting and promoting human rights.” (Para. 11 (j)) The UN Secretary-General, in his report to the UN Security Council of 12 July 1999, assigned the lead role of institution-building within UNMIK to the OSCE and indicated that one of the tasks of the Institution-building Pillar (Pillar III) shall include human rights monitoring and capacity building. The Report of the UN Secretary-General to the UN Security Council, 12 July 1999, instructed UNMIK to develop co-ordinated mechanisms in order to facilitate monitoring of the respect of human rights and the due functioning of the judicial system and added that reporting must be carried out in a co-ordinated manner in order to facilitate the response capacity. In particular: “UNMIK will have a core of human rights monitors and advisors who will have unhindered access to all parts of Kosovo to investigate human rights abuses and to ensure that human rights protection and promotion concerns are addressed through the overall activities of the mission. Human rights monitors will, through the Deputy Special Representative for Institution-building, report their findings to the Special Representative. The findings of the human rights monitors will be made public regularly and will be shared, as appropriate, with United Nations human rights mechanisms, in consultation with the Office of the United Nations High Commissioner for Human Rights. UNMIK will provide co-ordinated reporting and response capacity.” (Para. 87) A Letter of Agreement, dated 19 July 1999, between the Under-Secretary-General for Peacekeeping Operations of the United Nations and the Representative of the Chairman- in-Office of the OSCE, stated that the Pillar III, OSCE, should develop mechanisms to ensure that the courts, administrative tribunals and other judicial structures operate in accordance with international standards of criminal justice and human rights.
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